BEIJING STRIKES BACK: The Risks Defined

Newly-elected legislators at the center of Hong Kong’s latest political storm knew they were playing with fire when they mangled their swearing-in oaths. They were supposed to pledge allegiance to the People’s Republic of China, to Hong Kong as part of China, and swear to uphold Hong Kong’s Basic Law constitution … as stipulated in its article 104.

They did all that but then went on to make a stand for Hong Kong independence. They also used some crudely insulting language and carried banners that said “Hong Kong Is Not China.” *

The two are Sixtus Baggio LEUNG Chung-hang 【梁頌恆】 elected from New Territories East, and YAU Wai-ching 【游蕙禎】 from Kowloon West. Both are members of the new 2014 Occupy protest generation and the new post-Occupy political party Youngspiration 【青年新政】. They’re referred to as localists to differentiate them from other pro-democracy partisans.

The two had said during the election campaign and after that they wanted to carry their message into the Legislative Council chamber itself. But since these new-generation radicals had scoffed at their predecessors’ habit of throwing water bottles and tearing up documents, listeners were left wondering what the new-comers had in mind. They had also said their goal was to establish the idea of Hong Kong nationalism, to create a greater sense of local identity that would differentiate Hong Kong from the mainland.

They obviously meant what they said since their oath-taking theatrics at the October 12 swearing-in ceremony were designed to do exactly what they had promised. Whether they foresaw the size of the storm they would provoke is for them to say.

It’s also way too soon to try and calculate how their consciousness-raising routines will play out … and whether this latest act of defiance will eventually prove worth the risk like others before them (Nov. 3 post).

But Beijing has now done its part by raising temperatures and escalating the confrontation to a new more serious phase. The swearing-in ceremony has finally provoked a direct response from the central government that had maintained a relatively hands-off approach since the 79-day Occupy street blockades in 2014.

Beijing has relied on the Hong Kong government and local loyalist surrogates to try and block the rise of Hong Kong dissent … so far without success. Loyalists’ failure to make any gains in the September 4 election was proof enough that Hong Kong’s dissident movement was not being contained.

Instead it has begun to take root in the form of increasing demands for genuine autonomy, democratic self-determination, and on to independence. A direct deliberate challenge to Beijing’s authority by the new legislators from within the Legislative Council chamber itself was the last straw.

Beijing’s intervention seems set to have the widest repercussions of any since Hong Kong’s return to Chinese sovereignty in 1997. Now at least everyone can begin to anticipate how the risks are going to be defined and what price Beijing seems bent on extracting from Hong Kong for such defiance.

INTERPRETING THE BASIC LAW, ARTICLE 104

To outsiders, the whole episode must seem trivial enough. Two young people misbehave over a simple matter. So Beijing steps in to remind them they’re all grown up now and as full-fledged Legislative Councilors are expected to take the swearing-in ceremony seriously.

In fact, Beijing’s interpretation of Article 104 on oath-taking has major political and legal implications that range far beyond the simple matter of swearing in. These impinge on many of the most valued guarantees that Hong Kong originally thought had been safeguarded by its new post-colonial Basic Law constitution.

The guarantees include especially: judicial independence (Articles 19, 85); freedom of expression (Article 27); freedom of expression within the Legislative Council chamber (Article 77); the right to stand for local elections (Article 26); and Article 79(7), on declaring Legislative Councilors unfit for office when they are censured for misbehavior or breach of oath by a two-thirds vote of council members.

Beijing’s much-advertised promise to intervene directly only in matters of defense and foreign affairs is already long-forgotten, while Articles 158 and 159 on Beijing’s power to interpret and amend the Basic Law loom ever more ominously.

At a single stroke, Beijing’s interpretation of Article 104 … before Hong Kong itself could deal with the matter … suggests how every guarantee can be redefined and qualified at Beijing’s discretion.

Precedents have already been set for Beijing’s formal interventions on other grounds. But this is the most far-reaching in its potential implications for Hong Kong’s fundamental rights and freedoms. If the official and semi-official explanations accompanying the interpretation are any indication, there can be serious consequences to come.

The episode escalated rapidly. Leung and Yau were initially told by the council president they could retake their oaths at the next sitting. This they agreed to do and the matter looked set to be contained within the Legislative Council itself. But when the hour arrived, all pro-establishment legislators walked out of the chamber, demanding that legislators apologize. Without a quorum, the meeting could not proceed.

The next day, Hong Kong Chief Executive Leung Chun-ying applied for a judicial review. This intervened in council business and ostensibly violated the separation-of-powers principle, which is only implied in the Basic Law but nowhere guaranteed.

Based on Hong Kong’s own law about oath-taking for all officials, he asked the Hong Kong court to issue a decision on whether the two should be disqualified as legislators.

Then, before the court could act, Beijing stepped in with a decision of its own, on November 7, preempting the Hong Kong court’s judgement. It was no longer just a matter of Legislative Council business, or even that of the Hong Kong court and Hong Kong’s Chief Executive.

Beijing’s interpretation is simple enough and concisely drafted.** It doesn’t refer to the case of the two legislators and doesn’t say anything about being retroactive to include their behavior on October 12. It says only that Hong Kong officials must pledge allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, in accordance with the Hong Kong Basic Law’s article 104.

Hong Kong’s own law on oath-taking contains such an injunction but the interpretation from Beijing adds some details, like: the content of the oath must also become the legal requirement and precondition for standing for election and taking up public office. No corresponding powers or functions can be exercised or perks enjoyed without taking the oath.

Also, the oath must be taken sincerely, solemnly, accurately, and completely. Otherwise it’s invalid and the oath-taker is disqualified from assuming the office in question. If the oath taken is determined to be invalid, no arrangement shall be made for the individual to retake the oath.

And the oath is legally binding. “The oath taker must sincerely believe in and strictly abide by the relevant oath prescribed by law. An oath taker who makes a false oath, or, who, after taking the oath, engages in conduct in beach of the oath, shall bear legal responsibility in accordance with law.”

The document was immediately submitted to the presiding Hong Kong judge who must now thread the needle by issuing a decision on the Chief Executive’s request to disqualify the two legislators, in accordance with Beijing’s interpretation, and maintain the appearance of judicial independence … all at the same time.

Actually, this could be done easily enough since the two legislators are not specified in the interpretation and it says nothing about being retroactive. Lawyers have their ways and legal arguments can be made in many directions … but for this we must await Judge Thomas Au’s decision. *** In the meantime, the furies have been unleashed in an effort no doubt to help him reach the correct conclusion.

ELABORATIONS FROM ON HIGH AND PRESSURES FROM BELOW

If official, semi-official, and unofficial statements are any indication, the real-life consequences will be far-reaching. Chief among those from above, in Beijing, is the aim of stamping out “firmly and without hesitation” the new independence idea.

From below, in Hong Kong, are calls to deprive many legislators of their newly-won seats. The reason: their oaths were not taken solemnly and sincerely in accordance with Beijing’s Article 104 interpretation.

Beijing’s leading point man on Basic Law matters explained that an interpretation was necessary due to loopholes in Hong Kong’s current legal system. The Article 104 interpretation was adopted to fill those gaps and avoid further disputes. Li Fei 【李飛】was speaking at a press conference in Beijing soon after the interpretation was issued on November 7.

He denied that Basic Law interpretations are a threat to Hong Kong’s judicial independence and blamed Hong Kong legal authorities for that idea. They had been spreading such fallacies for decades … misleading the public by suggesting that any Basic Law interpretation is equivalent to Beijing interfering with Hong Kong’s judicial independence.

Li said the interpretation was made to help Hong Kong courts implement laws accurately. Beijing’s interventions are in fact intended to safeguard Hong Kong’s rule of law and are manifestations thereof. But he also emphasized that Beijing’s interpretations have the same status as the Basic Law itself and are meant to be obeyed. Hong Kong courts must follow where Beijing leads.

On the specific matter in question, Li Fei said advocating Hong Kong independence threatens the nation’s sovereignty, security, and integrity. Hence Beijing is firmly against allowing anyone who advocates separatism to become a member of any official Hong Kong body.

And that goes for those advocating democratic self-determination as well. They’re all the same: seekers of separatism from the mainland. All must be “strictly opposed.” (China Daily, Wen Wei Po, Nov. 8).

In Hong Kong, loyalists hastened to get the anti-independence ball rolling and do some consciousness-raising of their own. This began with a rabble-rousing boost from old time hardliner Chen Zuo’er 【陳佐洱】.

Chen is a retired Beijing official and now heads a mainland think-tank that holds periodic seminars across the border in Shenzhen. These are used to generate publicity in the greater Shenzhen-Hong Kong area for Beijing’s causes.

At such a forum on November 9, Chen dropped the low-key style of past mainland reminders to Hong Kong’s judiciary about supporting the executive. He blasted the courts for molly-coddling Hong Kong activists such as those who had emerged from court trials with only wrist-slapping reminders of their roles in the illegal Occupy street blockades.

He said there had been many such cases with national security implications because they targeted Beijing’s authority. But Hong Kong prosecutors and judges don’t treat them as such.

Chen also criticized Hong Kong’s legal profession for coming out strongly against the interpretation. He said either they didn’t understand it or were using the law as an instrument of political struggle.

To show Hong Kong how things should be done, the pro-Beijing media had identified eight types of insincere oath-taking at the October 12 swearing-in ceremony. The culprits were named along with a headline suggesting they should be flagged for further investigation.

The Shenzhen forum took the lesson a step further with one speaker saying as many as 15 legislators had violated the terms of proper oath-taking. This calculation was included in the remarks by hardline mainland legal authority Wang Zhenmin 【王振民】. He now heads the legal department at Beijing’s Hong Kong liaison office (Wen Wei Po, SCMP, Nov. 10).

Back in Hong Kong a trade unionist was wasting no time in pursuit of his patriotic duty. Robin Cheng Yuk-kai 【鄭玉佳】filed a judicial review petition at the High Court on November 9.

He’s seeking to disqualify eight lawmakers … adding some new names to the mix … all for having violated the terms of Beijing’s Article 104 interpretation on sincere oath-taking (Ta Kung Pao, SCMP, Nov. 11).

The details may be trivial, but the implications and risks are not. Legislators-elect Leung and Yau saw oath-taking as an opportunity to strike a blow for the new idea of Hong Kong independence. Beijing took advantage of the same opportunity to strike back against both that idea and against Hong Kong’s judicial tradition for allegedly protecting the idea’s promoters.

Chen Zou’er is right. This is a political struggle. But it’s being played out in the name of two different legal traditions and Hong Kong’s judicial establishment is not alone in waging it.

*** Update, Nov. 15: Judge Au ruled in favor of the Hong Kong government but maintained a modicum of independence by saying he had reached his conclusion independent of Beijing’s Basic Law Article 104 interpretation. He said the oath must be taken sincerely and solemnly, but Leung and Yau had not done so. He said Hong Kong is different from Britain where parliament is supreme and no written constitution exists. In Hong Kong the Basic Law is the constitution and it is supreme over the Legislative Council.